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Using § 1983 to Enforce Title VI’s Section 602 Regulations

This article explores when Section 1983 suits may be used to enforce agency regulations, and especially Title VI's disparate impact regulations. If a court finds that a federal statute creates a distinct "right" and that the plaintiff is an intended beneficiary of that right, there is a presumption that the right is enforceable under section 1983. The burden is then on the defendant to show that Congress expressly prohibited a suit under section 1983 or implicitly did so by enacting a comprehensive remedial scheme that is incompatible with a section 1983 suit. Furthermore, courts have recognized that a valid section 1983 cause of action may exist even where there is no private right of action under the same statutory provision. The federal circuits have split regarding whether agency regulations by themselves may create "rights" that are enforceable though section 1983 suits or may only "define" statutory rights that are enforceable under section 1983. Even in circuits that do not allow regulations alone to serve as the basis of a section 1983 suit, there is a reasonable argument that section 602 regulations merely assist to define the anti-discrimination right that Congress intended to create in Title VI, and, therefore, that the disparate impact standards in those regulations are enforceable under section 1983. Furthermore Title VI and its administrative enforcement scheme are not incompatible with section 1983 actions. Because there are different tests for enforcing a statutory right under section 1983 than through a private right of action, arguably a Section 1983 suit could be used to enforce Title VI's disparate impact regulations even if courts reject an implied private right of action to enforce those same regulations. A section 1983 suit could supplement a Title VI action by allowing suits against state officials in their individual capacities and permitting plaintiffs to raise constitutional claims that may offer additional remedies beyond those limited remedies established in Title VI's administrative regulations.

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